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2021 (11) TMI 126 - CESTAT AHMEDABADClassification of imported goods - miscellaneous Chemicals: plasticizer - to be classified under CTH 38122090 or not - Advance authorization licence scheme - goods declared as Plasticizers -Shell Flavex 595 B - willful and deliberate misdeclaration and suppression of factual description of the goods or not - conditional exemption under N/N. 96/2009-Cus dated 11.09.2009 - time limitation - HELD THAT:- As per the impugned order the learned Adjudicating Authority has decided the classification as Rubber Processing oil under CTH 27079900 however, maintaining the benefit of Notification No 96/2009-Cus dropped the proceeding of the SCN. It is found that even though the classification of the goods has been changed from 38122090 to 270799000 but the goods imported by the appellant even though as per the test report due to the reason that the product’s Aromatic Constituent exceeds Non Aromatic Constituents but the goods were admittedly used by the appellant in the manufacture of their export final product as Plasticizer only. Therefore, as per the use the respondent has correctly mentioned the description as Plasticizer. As per the Notification No. 96/2009 all the raw materials are exempted if it is used in the manufacture of export goods. In the present case there is no dispute that the goods imported by the respondents are used in the manufacture of their final export product this has been established on the basis of verification conducted by the Assistant Commissioner of Central Excise and Service Tax, Bhiwadi Rajasthan vide letter dated 31.12.15 wherein it was stated that the subject goods imported under Advance Authorization by the noticee during last 5 years has been used by them for the manufacture. With this undisputed fact substantive requirement of FTP and the Notification No 96/2009-Cus was complied with. Further, there is no reason for respondent to mis- declare the classification because even if the correct classification as held by the department is declared by the appellant the same benefit was available to the appellant. Therefore, it is only on the basis of test report which found that aromatic constituents exceed that of non aromatic constituents. The use of the product does not get altered therefore only because the appellant has not declared the classification correctly that too under their Bonafide belief the benefit of Advance Authorization and notification issued there under cannot be denied - This issue has been considered by this tribunal in the case of M/S. PSL LIMITED, SHRI MANOJ SANGHVI, M/S. RATNAMANI METALS & TUBES LIMITED AND OTHERS VERSUS COMMISSIONER OF CUSTOMS, KANDLA [2014 (5) TMI 789 - CESTAT AHMEDABAD] wherein the similar issue has been considered. In that case the appellants imported Hot Rolled Steel coils/Plates which were used for making steel pipes for export under Advance Authorization. All the appellants described the goods as “Primer HR Coils” and classified under CTH 72083690. The Learned Adjudicating Authority rightly extended the benefit of exemption notification despite the change in classification. It is also observed that even though the SCN was issued, EODC were issued and Customs Bond have been discharged, it clearly indicates that there is no non observance of any condition, for this reason also benefit of notification cannot be denied. Though the department is not precluded for investigating a matter as related to classification but EODC was issued on the ground that the goods imported have been used for the intended purpose therefore, the benefit cannot be denied. Time Limitation - HELD THAT:- There are force in this submission of the respondent therefore, there is no willful mis declaration of the goods. Hence, no malafide can be attributed to the respondent even if the declaration made there is not found acceptable in as much as it is the matter of the interpretation and onus to correctly classify the goods is upon the revenue. Therefore the demand for the extended period is also not sustainable on limitation. The impugned order is liable to be sustained - Appeal dismissed - decided against Revenue.
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